Natasha Sivanandan v Capstone Foster Care Ltd & Ors [2025] EWHC 1478 (KB)

[2025] EWHC 1478 (KB)Case No KA-2023-000206
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/06/2025
Before
THE HONOURABLE MR JUSTICE SWEETING
Between
Natasha SIVANANDANApplicantCAPSTONE Foster Care Ltd (1)RespondentsJacci Kirkland (2)RespondentSandy Birha (3)Respondent
Natasha Sivanandan, the Applicant, appeared in person for in personLuke Berry (instructed by Browne Jacobson LLP) for Respondents (1), (2) and (3)Hearing Hearing date: 14 March 2025
Approved JudgmentThis judgment was handed down remotely at 11am on 16 June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................THE HONOURABLE MR JUSTICE SWEETING

Introduction

[1]This is my judgment in relation to an application made by Ms Natasha Sivanandan (the "Applicant") to reopen the decision of Mr Justice Sheldon (“the Judge”) dated 11 July 2024, by which he refused permission to appeal from orders made by His Honour Judge Saunders (“the Trial Judge”) on 15 June 2022 and 6 October 2023. The Respondents are Capstone Foster Care Ltd., Ms Jacci Kirkland, and Ms Sandy Birha (the “Respondents”). The application to reopen is made pursuant to CPR 52.30 and Practice Direction 52A, paragraph 7.[2]The underlying claims made by the Applicant related to the Respondents' decision not to approve her application to be a foster carer, alleging breaches of the Equality Act 2010 (race discrimination, sex discrimination, victimisation, and harassment), the Human Rights Act 1998 (in relation to Article 6 and Article 14 of the European Convention on Human Rights), and negligence. The negligence claim was struck out on 15 June 2022. The other claims were dismissed after a trial on 9 June 2023. Permission to appeal was refused by the trial judge on 6 October 2023. The appeal against the Equality Act and Human Rights Act claims was lodged in time, but the appeal against the strike-out of the negligence claim and an issue relating to lay assessors was out of time.[3]Pursuant to an order by Sir Stephen Stewart dated 8 March 2024, the application was heard by the Judge at an oral hearing on 25 June 2024, conducted remotely. The Judge considered the Applicant's request for an extension of time to appeal the negligence strike-out and the lay assessors point, and whether to grant permission to appeal the orders of 6 October 2023 (which included the dismissal of the Equality Act and Human Rights Act claims and the refusal of permission to appeal by the Trial Judge). By an Order, which included reasons, the Judge refused to extend time for the negligence claim appeal and on the lay assessors point and refused permission for the remaining grounds of appeal. Because the reasons were included within the order itself a draft judgment was not circulated to the parties in advance. The Applicant was ordered to pay a percentage of the Respondents’ costs.[4]The Applicant now seeks to reopen that decision. She also seeks to appeal the costs order made after the permission to appeal hearing and to pursue a further ground of procedural unfairness relating to the trial in the county court.

The Applicable Law – Reopening Appeals

[5]The legal framework for reopening final determinations of appeals, including refusals of permission to appeal, in the High Court and Court of Appeal is set out in CPR 52.30. This rule codified a residual jurisdiction identified in Taylor v Lawrence [2002] EWCA Civ 2009. CPR Rule 52.30(1), states that a final determination will not be reopened unless: i) it is necessary to do so in order to avoid real injustice; ii) the circumstances are exceptional and make it appropriate to reopen the appeal; and iii) there is no alternative effective remedy.[6]CPR Rule 52.30(2) clarifies that "appeal" includes an application for permission to appeal. The jurisdiction to reopen is highly restrictive and will be exercised only in truly exceptional circumstances. The recent case of Municipio De Mariana v BHP Group Plc [2021] EWCA Civ 1156 provides an authoritative summary of the operation of the rule. The Court of Appeal in that case referred [60] to its earlier decision in R (Wingfield) v. Canterbury City Council [2020] EWCA Civ, [2021] 1 WLR 2863 as providing a helpful summary of five applicable principles extracted from the authorities:
“(1) A final determination of an appeal, including a refusal of permission to appeal, will not be reopened unless the circumstances are exceptional (Taylor v Lawrence). (2) There must be a powerful probability that a significant injustice has already occurred, and that reconsideration is the only effective remedy (Taylor v Lawrence, … Re Uddin). (3) The paradigm case is fraud or bias or where the judge read the wrong papers (Barclays Bank v Guy, Lawal). (4) Matters such as the fact that a wrong result was reached earlier, or that there is fresh evidence, or that the amounts in issue are very large or the point in issue is important, are not of themselves sufficient to displace the fundamental public importance of the need for finality (Lawal). (5) There must be a powerful probability that the decision in question would have been different if the integrity of the earlier proceedings had not been critically undermined (Goring…).”

The Applicant

[7]The Applicant is a litigant in person. She trained as a barrister and practised criminal law for a few years. She has experience in dealing with discrimination claims and has worked as a race equality adviser. It was evident that her wish to foster was of great personal significance to her and that the decision of the foster agency came as a blow. My impression was that she is sincerely of the view that she has been treated unjustly and that matters were taken into account that had no place in a fair assessment of her suitability to be a foster carer.

The Hearing of the Application to Reopen

[8]Prior to the hearing I asked the Applicant to identify precisely what it was she wanted me to concentrate on in preparatory reading. I was able to read through all of the bundles which she had prepared for the hearing and to concentrate on the pages she had identified in response to my request.[9]The Applicant has several medical issues including asthma. Reasonable adjustments were required. I canvassed these with her in advance of the hearing. She had the assistance of a friend who is a solicitor and was able to take notes as well as remind the Applicant to ask for a break if her asthma caused difficulties with breathing or speaking. The Applicant spoke from a seated position. She persevered with her submissions until it became evident that she did need a break. I left it to her to indicate when and for how long she required a pause in the proceedings. She was succinct and articulate in making her application. I asked her a number of questions and sought to summarise issues in the case, as the application proceeded, so that I could satisfy myself that I had understood the way in which she put her case.[10]The Applicant dealt with my questions firmly and effectively. She was robust in answering questions which challenged or probed her case. She was able to advance her arguments in a way which was, in my view, beyond the capabilities of many litigants in person. That reflected her legal qualifications and professional background. I allowed her the whole of the time provided for the hearing. Although the Respondents were represented, I did not hear submissions from them on the application. My impression was that the Applicant has obvious expertise in relation to discrimination claims. Her skeleton was well drafted, succinct and focused. The bundles were sensibly arranged. The core bundle included notes taken of the hearing before the Judge (“the Note of Hearing”) which were of high quality and appeared to be close to a verbatim record. I refer to them within the course of this judgment.

The Arguments

[11]The Applicant set out her arguments by reference to four issues which arose from the trial and on which she had based her application for permission to appeal: i) Issue 1 – Applicability of the Human Rights Act (HRA) 1998: She contests the Trial Judge’s finding that Articles 6(1) and 14 of the ECHR did not apply to her foster carer assessment. She argues this contradicts the precedent set in domestic case law, which established that independent fostering agencies perform public functions. ii) Issue 2 – Discrimination and Victimisation Claims: She challenges the dismissal of her claims for direct discrimination and victimisation under the Equality Act 2010. She asserts that the Trial Judge ignored significant evidence and contemporaneous documents that contradicted the Respondents' account, arguing these factual errors are so severe they constitute errors of law. iii) Issue 3 – Lay Assessors: No lay assessors were appointed for the trial. She claims this was contrary to the Equality Act 2010, breached her right to a fair hearing, and went against a prior agreement made in a case management hearing. She argues that the Trial Judge failed to apply relevant case law regarding the importance of lay assessors in discrimination cases. iv) Issue 4 – High Court Costs[12]The Applicant says, in broad terms, that there were arguable grounds of appeal which were not properly considered by the Judge to the extent that there was a significant injustice which requires the permission hearing to be reopened. The Applicant also seeks permission to pursue a further ground, citing the interruption of her cross-examination during the trial and the effect of the hot courtroom conditions on her health and ability to represent herself during the trial. She argues that the Trial Judge should have cancelled the court hearing due to the heat wave.

Issue 1 – The Human Rights Act Claim

[13]The Trial Judge determined that Article 6 was not engaged in the circumstances of the Applicant’s case. That conclusion rested on the proposition that Article 6 applies where there is a determination of a person's civil rights and obligations. This might be regarded as trite law: “...for Article 6 § 1 in its “civil” limb to be applicable, there must be a “dispute” regarding a “right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether it is protected under the Convention” (see Q and R v. Slovenia(Application no. 19938/20) 8 February 2022 at [63]).[14]The Trial Judge concluded that whilst there was a right to apply to become a foster carer, there exists no correlative right to be appointed as a foster carer under domestic law. The decision to refuse Ms Sivanandan's application did not therefore constitute a 'determination' of her civil rights for the purposes of Article 6. He said [199]:
“In Frezadou v Greece App NO 2683/12, It was said that for the civil limb of article 6(1) to apply, that there must be a right identifiable in the relevant domestic law. There does not therefore, appear to be an ability for article 6(1) to apply on the facts of this case.”
[15]The Applicant’s account of the permission hearing was that when she addressed the Judge on her Human Rights Act ground of appeal, he asked her what civil right was being determined so as to engage the Article 6(1). The Applicant directed him to paragraphs 255 to 269 of the High Court judgment in R (on the app. of Cornerstone North East Adoption and Fostering Service Ltd) v OFSTED [2020] EWHC 1679 (Admin). The Judge then discovered that he did not have the bundle containing that judgment and paused the proceedings to obtain a copy. Due to technical difficulties the Applicant was unable to see the Judge whilst he was, she states, apparently reading the Cornestone judgment.[16]The Applicant argued that the First Defendant, Capstone Foster Care Limited (Capstone), as an Independent Fostering Agency (IFA), functions as a hybrid public body, carrying out functions of a public nature. She submitted that the civil right being determined in relation to a claim under Article 6(1) and Article 14 of the European Convention on Human Rights (the Convention) was the right to family life, contained in Article 8 of the Convention.[17]In support of her argument, the Applicant relied on the High Court judgment in Cornerstone. This judgment refers to applicable European Court of Human Rights (ECtHR) case law, specifically EB v France (App No. 43546/02) [2008] 1 FLR 850. The Applicant maintains that both Cornerstone and EB v France are directly supporting her case and demonstrate that her appeal has a real prospect of success, as she submitted to the Judge when seeking permission.[18]It is clear from the Hearing Note that Counsel for Respondents, Mr Berry, sought to meet the arguments advanced by reference to the judgment in Cornerstone repeating, in effect, the submissions which he had made successfully at trial and implicitly inviting

the Judge to read the Cornerstone judgment in more detail:

“LB - Ground 2, the HRA point- grounds that are brought within time. Said by claimant that Cornerstone supports suggestion that she is entitled to HRA rights. There’s no suggestion otherwise - but as it’s about the interpretation of Article 6. Cornerstone is a long judgment that I suspect you will review in due course. Issues identified at paragraph 6 very clearly. Deal’s with Cornerstone’s European Convention Rights under articles 9, 10, 11 and 14. Said to support the claimant’s case because it says that Cornerstone is a public authority - that’s right and that’s why Capstone admits that the HRA applies. That does not go as far as saying that Art 6(1) applies. Our argument in the court below accepted there has to be a civil right identified - there has to be a right identified in domestic law - there is no right to foster and therefore the civil right to a fair procedure in determination of a civil right does not apply.”
[19]However, when

the Judge came to deal with this issue under the heading of "Human Rights" he said [37]:

"The case of R (Cornerstone (North East) Adoption and Fostering Services Ltd, v Ofsted [2021] IRLR 993, upon which Ms Sivanandan relies does not support her argument. That decision concerned the recruitment policy of the fostering agency - that fosters carers should refrain from ‘‘homosexual behaviour”. That case did find that the policy fell within Article 9 of the Convention (religious belief), but says nothing about the Article 6 rights of an Applicant to be a foster carer."
[20]A central plank of the Applicant's argument for re-opening is her contention that the Judge denied her a fair hearing because he clearly did not read paragraphs 16 and 17 of her Grounds of Appeal and paragraphs 23 and 24 of her Skeleton Argument for the permission to appeal hearing. She submits that had he done so (as he assured her, he would at the hearing), he would have known that the case she relied upon was the High Court Cornerstone judgment, not the Court of Appeal judgment in Cornerstone at [2021] IRLR 993, which she asserts the Judge mistakenly referred to.[21]The Applicant pointed out that the Court of Appeal judgment in the IRLR version does not contain paragraphs 259 and 260, which she had specifically cited from the High Court judgment in her permission skeleton argument to address the question of whether Applicants to foster are in the same position as job applicants with no right to be appointed; a question which the Judge raised with her during the permission hearing. The Applicant argued that the Judge's failure to consider her submissions and relevant case law, and his failure to apply the applicable law including ECtHR case law, constitute exceptional circumstances that necessitate re-opening in order to avoid a real injustice, for which she submitted there is no alternative effective remedy.[22]I have considered this submission carefully because the conclusion appears to be unavoidable that the Judge referred to a case which had not been cited by the Applicant for the purpose which the Judge identified and did not refer to the authority which had in fact been relied upon. It may be that this error arose from the confusion over bundles of authorities that had arisen during the hearing but the Applicant’s contention that any mistake would have been corrected if attention had been paid, at least, to her skeleton, appears to be correct.[23]However, the context is important. The Judge's observation by reference to the ‘wrong’ Cornerstone case came directly after the following paragraph in his judgment [36]:
“The judge was right to decide that Article 6 was not engaged. Article 6 is only engaged, as the judge rightly stated, where there is a relevant ‘determination’ of a person’s civil rights and obligations. Although Ms Sivanandan has a right to apply to be foster carer, there is no right to be appointed to that role in domestic law and so the refusal of her application was not a ‘determination’ of her civil rights. This is correct as a matter of law.”
[24]The subsequent reference to the decision of the Court of Appeal in Cornerstone was to the effect that it was silent as to Article 6(1) and so did not support the Applicant’s argument. The substantive point, about which the Judge agreed with the Trial Judge, had been made in the preceding paragraph. In her skeleton argument for the hearing before me the Applicant said:
“39. Given the ECtHR case law, it was unsurprising that Mr Justice Julian Knowles in the High Court in Cornerstone held that: (a) Applying s. 6(1) HRA 1998, IFAs are hybrid bodies carrying out public functions; (b) Convention rights applied to Applicants to foster under Article 8. So the “civil right” being determined for the purposes of Article 6(1) is Article 8; (c) Applicants to foster are not like job Applicants and Convention rights and the HRA 1998 applies to the treatment of Applicants to foster, although in that case there was no “victim” as such involved.” (a) Applying s. 6(1) HRA 1998, IFAs are hybrid bodies carrying out public functions; (b) Convention rights applied to Applicants to foster under Article 8. So the “civil right” being determined for the purposes of Article 6(1) is Article 8; (c) Applicants to foster are not like job Applicants and Convention rights and the HRA 1998 applies to the treatment of Applicants to foster, although in that case there was no “victim” as such involved.”
[25]This is an accurate summary save that there is no conclusion in the High Court judgment in Cornerstone that the Convention rights which were found to be applicable meant that Article 6(1) was engaged. While Section 6 of the Human Rights Act 1998, which makes it unlawful for a public authority to act in a way which is incompatible with a Convention right, was a foundational element of the case, Article 6 did not give rise to a substantive issue for the court to decide. The legal arguments and the court's judgment focused primarily on issues of discrimination under the Equality Act 2010 and their interplay with articles of the ECHR. The observations made by the Judge in the present case by reference to the Court of Appeal decision could equally well have been made in the relation to the High Court judgment.[26]Further the Trial Judge, having rejected the arguments as to the application of Article 6(1), went on to consider the procedural position [200]:
“However out of an abundance of caution, and if I'm wrong about this, I've gone on to consider the fairness of the procedure.”
[27]He concluded [212]:
“I can find nothing that indicates that the claimant did not receive a fair hearing. I adopt those points that I previously made when considering the Equality Act claims in support of this finding.”
[28]Whilst the Applicant criticises both the Trial Judge and the Judge in relation to the way in which the evidence was assessed (see Issue 2 following) there can be no doubt that her case in relation to Article 6 was addressed both as a matter of law and, by the Trial Judge, on the facts. Whilst I am not conducting a second appeal for the purpose of this application it does not appear to me that the legal conclusion reached as to Article 6(1) was incorrect.[29]I accept that there is a foundation for the criticism that the ‘wrong’ authority was referred to in the Judge's reasons and the case in fact relied upon may not have been considered but this does mean that this is an exceptional case involving a significant injustice with any probability that the decision in question would have been different absent the matters relied upon by the Applicant under Issue 1. The error did not undermine the conclusions reached on the central substantive question.[30]There are two other matters raised by the Applicant in relation to Issue 1. The first is the permission given to the Respondents to address the court on all ground’s contrary, it was argued, to the limited permission given by Sir Stephen Stewart. The Judge dealt fully with the extent to which the Respondents were permitted to take part in the hearing before him in his subsequent ruling on costs, concluding that the earlier order did not impose the limitation argued for by the Applicant. I have considered and agree with the Judge’s analysis on this point. In any event it was open to him to identify the assistance which he needed from the parties at the hearing, and it is evident from the Hearing Note that he exercised control over the manner in which the Respondents were allowed to make submissions.[31]The second matter is a general complaint of judicial impatience and the use of a Latin phrase by the Judge that the Applicant did not understand. Neither of these additional complaints, if correct, could possibly be regarded on their own, or even as selected examples of judicial conduct, as providing reasons for reopening an appeal permission hearing.

Issue 2 – The Equality Act

[32]A central contention in the permission hearing was the alleged failure by the Trial Judge to properly consider evidence presented by the Applicant. She argued that a substantial volume of evidence, including contemporaneous documents and witness accounts, was overlooked or ignored by the Trial Judge. The Applicant made a general complaint but also relied on specific items such an email from Ms Whittle, the social worker who assisted with the assessment, dated 21 March 2019, suggesting it supported an inference of victimisation by indicating that the First Defendant's had taken into account or was influenced by the Applicant’s previous litigation history and potential liability (of the Agency). She pointed out that this document, despite its apparent significance, was not discussed in the county court judgment.[33]The Hearing Note indicates that the matter was raised by

the Judge with Counsel for the Respondents at the permission hearing:

“Judge -– It was drawn to my attention at page 64 — where Ms Whittle has written that Capstone was concerned about previous litigation and any potential liability, so on its face that looks like a prima facie victimisation. Ms Sivanandan told me that this does not even feature in the judge’s reasoning. Is that right - it’s not there at all?... Judge -– That’s not surprising as it probably wasn’t available to the claimant when it was pleaded. But it would come under disclosure. On its face it does raise some serious alarm bells about victimisation. What the claimant is saying is that the judge took a rather perfunctory approach, not the Anya approach, not really making findings of fact from which inferences could be drawn etc. One would have expected a document as clear as that to feature. Or do you say no? LB -– 2 points - first, the claimant had significant pre action disclosure through Subject Access Requests, (SAR). But in my submission it would not amount to an error of law to not refer to one or two specific documents in the course of a bundle of thousands of pages and the claimant’s cross examination of Ms Kirkland that ran for over a day. Judge -– It’s unusual isn’t it to find a document like that that? We used to call it a smoking gum. If the claimant did make reference to it in her evidence or submissions or cross examination, isn’t it common sense that it ought to be dealt with expressly by the judge? And if it isn’t there, might there be some concerns about the rigour with which the judge applied himself to the facts? LB – I can’t recall that email being dealt with or in cross examination of Ms Kirkland. Judge — I'm not asking you to recall, I haven’t gone back to the written submissions, but I assume there will be reference to it. It’s just that it is a smoking gun document. You’re saying to me it must have been considered because the judge properly applied his mind to the facts and evidence? LB — Yes, I can’t produce a reference that isn’t there, but it doesn’t damage the judgment to a fatal degree that it isn’t there when one considers the full analysis and evidence the judge sets out and the length of the judgment and approach to the issues.”
[34]It appears that the Judge fully appreciated the point that the Applicant was making, and its potential significance given the way in which he explored the matter at the permission hearing. In his judgment he concluded that the document might lend support to the Applicant’s submissions but advanced a probable reason why it had not been referred to by the Trial Judge [26]: “With respect to the claim for victimisation, it was argued by Ms Sivanandan that there is no reference in the judgment to two particular documents. First, I was referred to an email dated 21 March 2019 from Ms Clover (a social worker who completed the Form F with Ms Sivanandan). The email stated that: “There are no outstanding checks for NS. Capstone is concerned about the previous litigation cases relating to discrimination issues and any potential liability to the company. I can speak to you further on this tomorrow.” (My emphasis). On its face, this document provides support for an argument that, as at 21 March 2019, the First Defendant may have been motivated by the “protected acts” in their decision-making with respect to Ms Sivanandan. The judge does not deal specifically with this document. However, that does not of itself give rise to an arguable ground of appeal if, as appears to be the case, the document was not brought to the judge’s attention, and it was not relied upon by Ms Sivanandan. From the materials that I have seen, it does not appear that that document was highlighted by Ms Sivanandan before the judge: it does not appear in her Amended Particulars of Claim, in her lengthy and detailed witness statement, in her skeleton argument for the trial, in Ms Sivanandan’s chronology of relevant events for the trial, or in the supplementary skeleton argument submitted at the end of the trial.” “There are no outstanding checks for NS. Capstone is concerned about the previous litigation cases relating to discrimination issues and any potential liability to the company. I can speak to you further on this tomorrow.” (My emphasis).[35]The Applicant asserts that this statement by the Judge was incorrect, as the email was included in her witness statement for trial (specifically at paragraph 244) and was referred to in her skeleton argument for trial. Having looked at the documents she is plainly right about this.[36]The Applicant contends that the Judge’s assertion served to belittle her and reinforced "a perceived scepticism towards her submissions". She states that her impression was that her submissions were "met with scepticism whereas whatever Counsel said was regarded as credible". The way the Judge expressed his conclusion was, in her view, "designed to belittle me by setting out all the places where I could have mentioned the email but failed to do so".[37]Because her assertion about being cross-examined on the email was doubted, she subsequently obtained the trial transcript (after the permission hearing) to demonstrate that she had indeed been cross-examined on this document by Mr Berry. She suggested that he had done so "precisely because he understood its importance".[38]She links the Judge’s statement about the email to a broader pattern, arguing that it illustrates a failure to engage properly with her case and disadvantaged her as a litigant in person. This, she contends, meant she was not afforded an equal footing, contrary to the Overriding Objective and the guidance in the Equal Treatment Bench Book.[39]The Applicant argued that both courts misapplied the relevant legal principles under the Equality Act. She contends that the Trial Judge's approach, which she describes as simply comparing pleadings to the Defendants' explanations rather than conducting a thorough analysis of the evidence, was legally incorrect. She asserts that the key issue in her victimisation claim was not merely the plausibility or reasonableness of the Defendants' view of her, but whether their actions and perspectives were tainted or affected by their knowledge of her protected acts. The Applicant submitted that her protected acts played a material part in the decisions to re-examine her application form, to prevent her from proceeding to the panel, and to issue a report recommending the termination of her assessment. She also points out that Ms Kirkland's admission under oath that she was not authorised to carry out the specific stage of assessment she undertook was seemingly overlooked. The Applicant relied on case law such as Fullah v Medical Research Council[2022] EAT 45 in support of her arguments regarding the proper analysis of interconnected claims and the need to identify whether the Defendants' views were influenced by discriminatory factors.[40]Whilst I think it is clear that the Judge did make an error in suggesting that the relevant email was not referred to in the trial documents it is also clear that he had fully considered the point, which was being made by reference to the email, as his questions to Counsel for the Respondents indicated. In his judgment he went on to say [27]:
“27. Even if the email did feature in the case, however, and even if it could have given rise to an inference of victimisation that needed to be rebutted, it is clear from the judgment that it could have made no difference to the outcome. The judge was clear as to why the fostering application was rejected, and that it had nothing to do with the protected acts.”
[41]This conclusion was inevitable given the factual findings made by the Trial Judge. That involved an evaluative exercise. The Applicant disagrees with the outcome and has pointed to evidence which she says was not weighed properly or at all. That is a common feature of applications for permission to appeal. I am not rehearing that application. The question for me is whether there is some feature of the permission hearing itself that would, exceptionally, provide a reason to reopen it.[42]Although there are assertions about judicial demeanour during the permission hearing, they are subjective. There is no material on which I could properly conclude that they were part of any pattern of behaviour which undermined the fairness of the hearing before the Judge. Applying the stringent requirements of Rule 52.30, the Applicant must demonstrate not only that a significant injustice has probably occurred but that the integrity of the earlier process was critically undermined in an exceptional manner, and that there is a powerful probability the outcome would have been different if the issue had been properly addressed.[43]While the Applicant has raised points challenging the correctness of the Judge's decision and the Trial Judge's original findings on the Equality Act claim, the Judge's reasons show that he did consider the substantive grounds for appeal, including the specific arguments relating to evidence such as the email, and the application of legal principles. His conclusion was that these grounds lacked a real prospect of success. The fact that he addressed the 'smoking gun' email and provided an alternative reason why it would not have altered the outcome of the permission application indicates engagement with the issue, even if his premise of initial non-reliance by the Aplicant was mistaken.

Issue 3 – Lay Assessors

[44]Lay assessors are individuals appointed under Section 114(7) of the Equality Act to assist the court. They bring "skill and experience" in relation to the proceedings. The Applicant contends that having lay assessors is particularly important in discrimination cases, especially when a party is a litigant in person. She cited guidance suggesting that lay assessors help ensure a level playing field and can assist the court with complex factual matters, including those that might involve unconscious bias or stereotyping. The statutory provision indicates that the court must appoint one or two lay assessors unless it is satisfied there is "good reason" not to do so. There is therefore a presumption in favour of their appointment, which is rebuttable.[45]The issue of lay assessors first arose in the Applicant's case at a Costs and Case Management Conference ("CCMC") held in early July 2021. The Applicant states that she requested two lay assessors for the trial at this hearing, and this request was not opposed by the Respondent’s Counsel. However, the court order subsequently produced after the CCMC, dated 15 July 2021, did not mention lay assessors, indicating that the case would be listed for trial before a Circuit Judge. The Applicant told the Judge that she did not notice this omission at the time.[46]The question of lay assessors was raised again at a hearing on 13 June 2022. The transcript of this hearing shows the Applicant asking the Trial Judge, if they would have lay assessors at the trial. The Trial Judge responded that none had been appointed and there had been no direction for them, stating, "I am afraid you are stuck with me". The Applicant stated that she had not remembered at the time of the 13 June 2022 hearing that the appointment of lay assessors had been agreed by the judge at the CCMC, nor had she appreciated that it had not been included in the directions order. The Applicant pointed out that lay assessors had not been booked despite her requests when she returned the trial readiness questionnaire on or about 6 of July 2022.[47]The Applicant then raised the matter again in her skeleton argument for trial, submitted on 12 July 2022, just before the trial began. She contended that she had requested two lay assessors at the CCMC, that the Defendants had not opposed it, and that the court had subsequently said she would not have them without any discussion or explanation. She argued that this was in breach of the guidance in Cary v Commissioner of Police of the Metropolis [2014] EWCA Civ 405. She stated that she felt like an outsider in the proceedings and feared her submissions would be treated with scepticism. She believed that having lay assessors was an important part of ensuring a level playing field at trial.[48]In his reasons for refusing permission to appeal, the Judge found that the ground of appeal in relation to lay assessors was brought well out of time, noting that the Applicant knew from the hearing on 13 June 2022 that there would be no lay assessors. Applying the Denton principles, he found the delay significant and serious, and that no explanation had been given as to why an appeal could not have been brought sooner, particularly before the trial commenced. The Judge concluded that there were several opportunities for the Applicant to correct any mistake in the directions order after the CCMC or to ask the Trial Judge to reconsider after the June 2022 hearing, but she had not done so. He ultimately decided not to extend time for this ground of appeal, finding that the balance of prejudice strongly weighed in the Defendants' favour. He noted that while the appeal might have had reasonable prospects of success on the merits, the failure to act sooner mitigated any injustice. He observed [18]:
“There is considerable prejudice to the Defendants in Ms Sivanandan not bringing this appeal sooner. The trial has taken place, which necessarily involved much cost and effort on the part of the Defendants, and the claims under the Equality Act have been rejected after detailed consideration by the judge.”
[49]This decision was plainly open to the Judge, and he reached it well within the discretion he was being asked to exercise giving full reasons and having acknowledged that there was merit in the appeal. He had to weigh the potential fairness to the parties on either side of the litigation. It was not reasonably arguable that the appeal was brought in time. In her evidence in support of the application to reopen the Applicant attributed delay to family bereavement and the fact that she was unaware that she could appeal until she was provided with the case of Cary. The Applicant’s skeleton for the hearing before me tacitly acknowledged that she had not asked the Trial

Judge to reconsider the matter in her trial skeleton or at the hearing, explaining:

“In the county court I was frightened about challenging the judge for fear of risking his ire.”
[50]It is difficult to see how this issue raises any point that can be brought within the exceptional jurisdiction under Rule 52.30. The appeal was out of time and the Judge refused to extend time.

Issue 4 - Costs

[51]The Applicant contends that the costs order made on 1 October 2024 resulted from significant procedural unfairness and breaches of the CPR and relevant Practice Directions. She argues that the circumstances are exceptional and that no other effective remedy exists. She drew attention to the fact that the Respondents were permitted to apply for costs despite their failure to comply with PD44. Whether or not this is strictly a matter which falls within the jurisdiction to reopen I heard submissions on the topic at the hearing and I was asked to determine the point.[52]In relation to the alleged procedural unfairness stemming from the late service of the costs statement and the handling of the Applicant’s application for an extension of time, the Judge did acknowledge the Defendants' failure to comply with the rule requiring the statement to be served 24 hours before the hearing. He explicitly addressed this non-compliance in his reasons for the costs order. Rather than refusing the costs application entirely, he concluded that a 30% reduction of the awarded costs was a proportionate penalty for the late submission and also reflected a "rough and ready" assessment of potential reductions on detailed assessment. The CPR provides remedies for procedural non-compliance, including disallowing or reducing costs. The Judge applied such a remedy. The Applicant says that her application for an extension to reply to the costs submissions was not responded to by the Judge. However, she was in the event able to provide detailed submissions in reply to the Defendants' costs application and suffered no obvious prejudice.[53]As part of her submissions on costs the Applicant asserted that the Respondents were only to be allowed a limited role in the hearing which the judge improperly expanded. I have referred to this argument earlier, concluding that there was no such restriction in place for the reasons identified by the Judge in his costs ruling. In any event, the conduct of a hearing, including permitting oral submissions and managing time, is a matter for the Judge's discretion. While the Applicant felt disadvantaged by this approach, particularly as a litigant in person, such matters typically fall within the realm of case management decisions. For procedural unfairness to justify reopening under CPR 52.30, it must be so fundamental as to critically undermine the integrity of the entire process. The jurisprudence contemplates issues which are of a very different character, such as fraud or bias.[54]The challenges to the proportionality and reasonableness of the costs claimed relate to the assessment of costs itself, which is separate from any consideration of the fundamental integrity of the proceedings leading to the award of costs. The Judge made a summary assessment, including a significant reduction. While the Applicant may disagree strongly with the Judge's assessment and the amount ordered, disagreements with discretionary decisions on costs, even where non-compliance has occurred, do not, without more, render the circumstances exceptional or demonstrate a real injustice sufficient to trigger the exceptional power to reopen under CPR 52.30.

Procedural unfairness in the county court

[55]The Applicant contends that she was denied a fair hearing in the county court primarily, it would appear because the Trial Judge did not adjourn the trial in light of the excessive heat. She says this amounted to procedural unfairness as the heat directly affected her health and her ability to participate effectively, particularly as a litigant in person with a disability.[56]At the outset, on the first day of the hearing,

the judge addressed the parties as follows:

"Good morning to you both. Before we start, I just want to mention the temperature. I am okay because I have got a fan here; well I say I am okay, it is still pretty hot. I dispensed with robes yesterday because I thought it was going to be oppressive, which it is. The temperature outside is 35. It is going to get hotter. If anyone feels unwell or does not want to continue and wants a break, please let me know straight away. I have taken a view, because the Supreme Court is closed today because their air conditioning is broken, so it is not that effective in here. Monica has put a couple of fans out so hopefully it will be all right but if it gets too hot, I doubt if we will go the full day but we will try and do our best as much as we can. We will have to balance up on the one hand the need to get this trial dealt with but also the concern about the parties and of course the ability to concentrate on all parts."
[57]The Applicant appears to accept that notwithstanding this invitation from the judge to inform him of any difficulties she said nothing. In her supplemental closing skeleton following the trial she said:
“On the first day of the trial, (the 18 July was a Judge’s reading day), the temperature outside was over 40 degrees and the temperature in the court room was excessive and probably in breach of health and safety at work legislation, but the trial went ahead in circumstances where other court hearings were adjourned. It was particularly hard for me as I am a disabled LiP - a matter I had properly drawn to the attention of the court previously. I felt my health was put at risk but was too afraid to say anything. The hearing should have been adjourned. By the third day I was suffering from ill health due to severe dehydration and I could not function at my best.”
[58]It is clear that the Trial Judge sought to take into account and mitigate the unseasonably hot weather during which the hearing took place. Only the Applicant could have made an assessment of the effect of the heat upon her and the extent to which it interfered with her ability to participate in the proceedings. There was no application to adjourn. According to the Trial Judge’s written reasons for refusing permission to appeal the applicant was given breaks during the course of the trial. Those written reasons also dealt with the constraints which the Trial Judge put on some of the cross examination. As the Judge said these were all matters which went to case management and the conduct of the trial in respect of which the Trial Judge had a generous discretion. Equally there is nothing in the way in which these issues were considered by the Judge at the permission hearing which could be the subject of any reasonable criticism.

Summary and Conclusions

[59]The power to reopen is not intended to cater for the general run of appellate decisions about which a party may be aggrieved. The jurisdiction is properly invoked only where it can be demonstrated that the integrity of the litigation process has been critically undermined. The paradigm cases involve corruption, fraud, bias, or the judge reading entirely the wrong papers. Where the integrity of the process is alleged to have been critically undermined, there must be a powerful probability that the decision in question would otherwise have been different.[60]In relation to the asserted failure by the Trial Judge to consider the email from Ms Whittle, the Judge did address this point in his reasons for refusing permission to appeal. He noted that, on its face, the email provided support for an argument that the First Defendant may have been motivated by protected acts. While he stated, incorrectly, that it did not appear to have been highlighted or relied upon before the Trial Judge, he nevertheless went on to consider its effect. The Judge concluded that even if the email could have given rise to an inference of victimisation, it would have made no difference to the outcome because the Trial Judge was clear as to why the fostering application was rejected, stating it had nothing to do with protected acts. As the Judge observed the Trial Judge found no basis for concluding that protected acts were a significant part of the decision to terminate the assessment. This indicates that the Judge did grapple with the potential significance of the email and its alleged omission from the Trial Judge's written reasons, but ultimately concluded it did not render the decision arguable on appeal or lead to a powerful probability of a different outcome. An application to reopen is not a mechanism for re-arguing points that were considered and rejected on appeal, or for rectifying every perceived error in the court's judgment.[61]The Applicant's arguments concerning the misapplication of legal principles and the Trial Judge's alleged failure to conduct a thorough analysis of evidence appear, in essence, to be challenges to the Trial Judge's findings of fact and his application of the law to those facts. The Judge, in refusing permission, concluded that the Trial Judge asked the right questions, looked carefully at the evidence, and made findings that were entirely open to him. He also noted that the weight of the evidence pointed to other reasons for rejecting the application, such as the Applicant's perceived unwillingness to work cooperatively. While the Applicant may strongly disagree with this assessment, a mere assertion that the decision following the permission hearing was wrong on the facts or the law is insufficient to trigger the exceptional power to reopen. The jurisdiction is not intended to function as a second appeal on the merits of the case where the process itself was not fundamentally flawed in a way that critically undermined its integrity.[62]The Judge’s refusal to extend time was open to him on the facts, given that there had been delay, and his refusal was accompanied by cogent reasons.[63]In relation to claims of procedural unfairness during the High Court or county court hearings, while such matters are to be taken seriously, they must reach a level that demonstrates that the integrity of the entire litigation process was critically undermined to justify reopening. Allegations of dismissive remarks or impatience must be assessed in the context of the hearing as a whole and are unlikely, without more, to satisfy the high bar set by the Rule 52.30 jurisprudence, which typically contemplates more fundamental issues. The Judge noted that case management decisions were within the Trial Judge's discretion and found no arguable basis to interfere with how the trial was conducted. The assertions made about the Judge’s conduct and demeanour during the permission hearing are highly subjective and even where a firm example is given would not amount to good reasons for reopening the appeal.[64]The Applicant has not demonstrated that the integrity of the process leading to the Judge’s decision of 11 July 2024 was critically undermined or that this is a truly exceptional case where a significant injustice would occur if the appeal is not reopened. Moreover, it is not arguable that the outcome would have been any different. For those reasons the application is refused. END

Order

She seeks to “reopen” the costs order from 1 October 2024. She contends that the costs awarded to the Respondents for responding to her permission to appeal applications were disproportionate and involved procedural unfairness. This issue therefore relates to a consequential order made by the Judge rather than the merits of her permission application or the way in which it was determined.